State v. Harper

• Decision Date: 13 March 1973
• Docket Number: No. S,S
• Citation: 205 N.W.2d 1,57 Wis.2d 543
• Parties: STATE of Wisconsin, Respondent, v. Charles E. HARPER, Jr., Appellant. tate 33.
• Court: Wisconsin Supreme Court

Page 1

205 N.W.2d 1

57 Wis.2d 543

STATE of Wisconsin, Respondent, v. Charles E. HARPER, Jr., Appellant.

No. State 33.

Supreme Court of Wisconsin.

March 13, 1973.

Charles M. Constantine, Konnak, Constantine & Krohn, Racine, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

Harper raises three questions on this appeal: (1) Whether it was error to allow Mr. Schultz to identify him at the trial, (2) whether Harper reserved his right to have suppressed as evidence the jewelry seized in Chicago; and (3) whether Harper received effective assistance of counsel.

Harper was required to stand in a lineup in a Chicago police station in which Mr. Schultz identified him. Prior to trial, the trial court held a hearing and found that although the lineup was not suggestive, it was illegal because Harper had been denied the right to presence of counsel; therefore, the lineup identification could not be used at trial. However, the court ruled that Schultz could make an in-court identification. Harper now claims this latter ruling was error because the in-court identification was the result of an exploitation of illegality and tainted by a violation of due process of law. On motions after verdict, the trial court reaffirmed its ruling on the in-court identification.

In State v. Brown (1971), 50 Wis.2d 565, at 569, 185 N.W.2d 323, at 325, this court explained the test for in-court identification as follows:

'The law is clear that an in-court identification must not be the result of an exploitation of illegality or tainted by a violation of due process of law. In the trilogy of lineup cases, United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Supreme Court followed the test laid down in Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, in determining the admissibility of in-court identifications following an illegal lineup or illegal confession. The Wong test is simply whether the evidence is acquired as the result of exploitation of illegality instead of by means sufficiently distinguishable and independent to be purged of any primary or prior taint of illegality. See State v. Schneidewind (1970), 47 Wis.2d 110, 118, 176 N.W.2d 303. Consequently, although there may be an illegal out-of-court identification, if the in-court identification can stand independently of such an out-of-court identification, it is admissible.'

In Jones v. State (1970), 47 Wis.2d 642, 178 N.W.2d 42, and State v. Schneidewind, supra, we stated, relying on United States v. Wade, supra, and Gilbert v. California, supra, that certain factors should be considered by the court in determining whether the out-of-court identification impermissively tainted or influenced the incourt identification. Among these factors are the prior opportunity to observe the alleged defendant during the criminal act any discrepancy between the pretrial description and the defendant's actual description, the identification of the defendant by picture prior to lineup, the failure to identify the defendant on prior occasions, and the lapse of time between the alleged act and the lineup identification.

Here, Schultz saw his assailant for two or three minutes. He directly faced Schultz in the store with a gun in his hand. The blow on the head by the other assailant did not affect Schultz' memory. Schultz identified Harper in the lineup, which was not suggestive. It is quite true, between the time of the robbery and the lineup Schultz viewed mug shots in the police station and did not identify Harper. It is assumed, although the record does not so state, that a mug shot of Harper was among the photographs viewed. No definite description was given to the police by Schultz. It is also true that while in Chicago accompanied by a detective, Schultz went into a courtroom and did not identify Harper who was seated therein with other defendants, awaiting a hearing on bail. We do not rely heavily on the fact Schultz did not recognize prior mug shots. The failure to identify by means of such photos is negative testimony and assumes the mug shots bore a reasonable resemblance to the photographed person at the time of the commission of the crime. Nor do we think it is controlling that Schultz did not recognize Harper in the courtroom in Chicago. He had no reason to examine the persons in the courtroom to see if he could identify them. It would, of course, be significant if Schultz had recognized Harper by photos or in the courtroom; but, the failure to do so does not carry the same contrary weight.

When asked the basis for his lineup identification of Harper, Schultz said he had seen 'the gentleman face to face in my store while he was holding a gun to my face and it was the same man that was standing in that lineup.' It is quite true the identification in the lineup did fix the identification more firmly in Schultz' mind, but this is not impermissive, if the lineup identification was not suggestive. While the lineup was illegal, the illegality was such that it had no effect upon the identification. From this record, we cannot say the in-court identification came about by an exploitation of an unfair lineup or in the language of Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 1247, that the lineup was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' The basis of Schultz' identification was 'by means sufficiently distinguishable to be purged of the primary taint of illegality.' Wong Sun v. United States, supra, and United States v. Wade, supra.

As the law then stood, the search of Harper's car by the Chicago police, after he had been stopped and was unable to produce a driver's license, was illegal. The search revealed ammunition, 21 Wisconsin-license-plate-validation stickers and jewelry bearing the tags of Schultz Jewelry of Racine. Jay Schwartz, as trial counsel, did not prior to trial move for the suppression of this evidence, mostly because his preparation of the case was such he was unaware of its existence. He did discover it during the second day of trial and prepared a motion for suppression. While such a motion under sec. 971.31(2), Stats., should be made prior to trial, it may also be made during trial at the discretion of the court. Instead of making the motion, counsel worked out a stipulation with the district attorney, and joined in by Harper, to admit the jewelry into evidence but to exclude the ammunition and the validation stickers. Harper claims this waiver of the right to have the jewelry suppressed is not binding upon him because he did not understand the effect of the stipulation and expressed an objection to his attorney when the stipulation was read to the jury and the jewelry was received in evidence. He also claims the waiver is not binding because the stipulation cannot be explained or justified as an act of competent counsel constituting a deliberate trial strategy or technique and part of an overall trial plan. In determining this issue, we omit any consideration of the somewhat overlapping issue of competency of counsel, later discussed.

Waiver of a constitutional right has been traditionally defined as an intentional relinquishment of a known right. see Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; State v. Beals (1971), 52 Wis.2d 599, 191 N.W.2d 221. Here, Harper claims he did not realize his entering into the stipulation would waive his right to have the jewelry suppressed if found to be the fruit of an illegal search. However, the record clearly shows that at the time of the hearing before the judge outside the presence of the jury he understood the stipulation, agreed to it, and even agreed to a correction. His present claim that he did not understand that the stipulation would be read to the jury is insufficient.

Assuming Harper did not knowingly enter into the stipulation, there is raised the important question of when an attorney may waive a constitutional right of his client. It is perfectly obvious that if during trial a client must be consulted on every possible waiver, the trial court not expeditiously proceed; constant interruption caused by attempts to explain technical and professional reasons to a lay person would prevent such a result. In Henry v. Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, the United States Supreme Court held a constitutional right may be waived by counsel's deliberate choice of strategy even without consultation with his client. This court in State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753, cert. denied 384 U.S. 1017, 86 S.Ct. 1941, 16 L.Ed.2d 1039, applied the Henry rule to a situation where as a part of the strategy counsel made no objection to the introduction of the defendant's admissions into evidence. In State v. Strickland (1965), 27 Wis.2d 623, 135 N.W.2d 295, the rule was applied to a situation where counsel chose to utilize an existing guilty plea, rather than to attempt to withdraw it, in hopes of obtaining leniency on sentencing. In State v. McDonald (1971), 50 Wis.2d 534, 184 N.W.2d 886, wherein counsel elected to refrain from moving to suppress lineup evidence, we stated, at p. 539, 184 N.W.2d at p. 888, 'While the defendant should be consulted concerning pleas of guilty and the general defense of his case he need not be consulted in every detail. The accused has no more right to control his attorney and the conduct of the trial than he has to dictate to his surgeon how to perform the operation.' In addition to the required consultation with a client and his consent regarding a plea of guilty, trial counsel cannot, without his client's express...